oversight

[Comments on Whether a Federal Employee Can Use Government Resources To Support Reserve Activities]

Published by the Government Accountability Office on 1999-01-04.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

      United States
GAO   General Accounting Office
      Washington, D.C. 20548

      Office of the General Counsel




      B-277678

      January 4, 1999


      Lorraine Lewis, Esq.
      General Counsel
      Office of Personnel Management

      Dear Ms. Lewis:

      This responds to your letter requesting our opinion on whether
      an agency employee on official duty, who is also a member of the National Guard
      or the armed forces Reserves, may conduct, and use agency office equipment to
      support, Guard or Reserve business. As explained below, we believe that agencies
      may permit their employees to use a limited amount of official time and agency
      resources to support the Guard or Reserves.

      Background

      On January 29, 1997, you advised the General Counsel of the Department of
      Veterans Affairs (VA) that federal employees may not use official time and
      government equipment for National Guard or Reserve duty purposes. You based
      this opinion primarily on two provisions of the Standards of Ethical Conduct for
      Employees of the Executive Branch promulgated by the Office of Government
      Ethics. The first requires employees to use official time in an honest effort to
      perform official duties unless laws or regulations authorize using the time for other
      purposes. 5 C.F.R. § 2635.705. The second states that an employee has a duty to
      protect and conserve Government property and shall not use such property, or
      allow its use, for other than authorized purposes. 5 C.F.R. § 2635.704. It defines
      authorized purposes as those for which Government property is available to
      members of the public or those purposes authorized in accordance with law or
      regulation. Id. You noted that there is no provision that includes Reserve or
      National Guard duties within an employee's official civilian responsibilities.

      You also advised the VA General Counsel of the provisions of 5 U.S.C. § 6323,
      which authorizes military leave for federal employees who perform active military
      service as members of a Reserve or Guard component. You noted that our office
      has held that an agency may not grant administrative leave in conjunction with
      military leave so as to extend the period for which military leave is to be used.
      49 Comp. Gen. 233 (1969). You also noted that we have held that it is incompatible
      for a person to be on active duty in the military and also be employed in a civilian
position with the government. B-222967, June 2, 1987; and 47 Comp. Gen. 505
(1968). You indicated that the cited decisions further support your conclusion.

Subsequently, you received an inquiry from Senator Patty Murray expressing
concern that your opinion may establish unfair and inequitable treatment of
reservists employed by the federal government as compared to those employed in
the private sector. She furnished an example provided by a constituent who is a
Naval Reserve officer and a private employer. The constituent stated that his unit
conducted a "Recall Drill" in which one of the unit's officers is required to verbally
contact each of the other members of the unit and report back by voice or FAX to
the Reserve Center. The officer who was requested to make the calls works for the
federal government and has been told that it would be unethical and illegal for him
to use the government telephones, FAX machines and his time while at work to
make these contacts. Senator Murray's constituent states that as a private employer
he would feel obligated to allow an employee to use company time and equipment
to perform this function, and he believes the government should do likewise.

You then requested an opinion from the Office of Government Ethics (OGE), which
promulgates the ethics regulations cited in your letter to the VA. OGE advised you
that 5 C.F.R. § 2635.704, concerning use of government property, was worded with
the intent to make it clear that "authorized purposes" may be purposes that do not
strictly relate to the performance of official duties. OGE also advised you that
5 C.F.R. § 2635.705, concerning use of employees' time, was worded with the intent
to ensure that it would not be construed to limit any authority an agency may have
to permit its employees to use official time for appropriate purposes.1 OGE did not
make a determination on the specific issue you raised, but advised you that a
finding that an employee's use of government property or official time is not
authorized would be necessary before these regulations could be invoked against an
employee to restrict such use.

You also requested advice from the Department of Defense (DOD) General Counsel
whether DOD has authority or an internal policy permitting federal civilian
employees who are Guard members or reservists to use official time and
government equipment for Guard or Reserve purposes. The DOD General Counsel
advised you that this is an issue concerning the appropriate use of government
resources, governed principally by fiscal law, and it is DOD's position that since the
National Guard and Reserve forces are parts of DOD, its support of those activities
does not violate 31 U.S.C. § 1301 (often called the Purpose Statute).


1
 Examples OGE provided were the use of government property under certain
circumstances in support of a professional association, pursuant to 5 C.F.R.
§ 251.202(a)(1), and use of official time on behalf of labor organizations pursuant to
5 U.S.C. § 7131.

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The DOD General Counsel also indicated that the attitude of the Federal
government toward service in the National Guard and the Reserves is captured by
the Uniformed Services Employment and Reemployment Act of 1994,2 which states
that "[It] is the sense of Congress that the Federal government should be the model
employer in carrying out the provisions" of the act.3

The DOD General Counsel also noted that 5 C.F.R. § 251.202, promulgated by the
Office of Personnel Management (OPM), permits an agency to provide support
services to organizations when the agency determines that such action would
benefit the agency's programs or be warranted as a service to employees who are
members of the organization. The General Counsel noted that this provision is
intended to permit agencies to provide official support for their employees who, in
their personal capacities, engage in professional associations or community groups
that benefit the agency or employee. She stated that while the Guard and Reserves
are not usually considered professional associations or community groups, they also
provide benefits to the agency, employee, and community that may warrant official
support. The DOD General Counsel further indicated that since the Guard and
Reserve are officially promoted by the federal government and contribute to the
national defense, it would be difficult for a federal agency to authorize support for a
private organization, yet withhold similar support for its employees who are
members of the Guard or Reserve.

Discussion

First, we address the three decisions of our office cited in your letter to VA. In
49 Comp. Gen. 233 (1969), we held that an agency may not grant administrative
leave to an employee who is a Reservist serving in an active duty status to, in
effect, extend the period for which the employee continues to receive his civilian
pay beyond the period covered by military leave provided for this purpose by



2
 The Uniformed Services Employment and Reemployment Act of 1994, 38 U.S.C.
Chapter 43, provides employment and reemployment protection for employees who
serve in the uniformed services, and prohibits discrimination against them because
of such service. It applies to private, state, and federal employers. It does not
include any specific provision authorizing a federal civilian employee who is also a
member of the National Guard or Reserve to use federal agency property or official
time for Guard or Reserve work.
3
 38 U.S.C. § 4301(b). See also, the July 6, 1998, "Memorandum for Members of the
Cabinet" jointly issued by the Secretaries of Defense and Labor requesting that
federal agencies become model employers to government employees serving in the
National Guard and Reserves.

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5 U.S.C. § 6323. In the situation you present, the civilian employee would not be in
a military duty status at the time he or she makes use of the agency equipment and
official time; the employee would merely be performing some incidental function
related to his or her Guard or Reserve organization while remaining in a civilian
status. Since the employee would not be in an active military duty status for which
military leave is available, 49 Comp. Gen. 233 would not prevent an agency from
permitting use of its resources in the circumstances you describe.

The other two decisions, B-222967, June 2, 1987, and 47 Comp. Gen. 505 (1968),
apply the general rules that an individual on active military service may not be
employed in a civilian capacity with the government, and the rendition of services
to the government in a civilian capacity by a member of the armed services on
active duty is incompatible with the member's actual or potential military duties.
These decisions hold that payment for civilian services in such circumstances is not
authorized in the absence of specific statutory authority therefor. In the situation
you describe, the employees would not be in an active military status receiving
military pay at the time they perform the limited incidental service for their Reserve
or Guard component. Therefore, these two decisions also would not bar an agency
from permitting an employee to perform the described services.

Generally, in analyzing questions concerning the extent to which an agency may
permit use of its resources for purposes not specifically authorized by law, we begin
with the Purpose Statute, 31 U.S.C. § 1301(a), which provides that "[A]ppropriations
shall be applied only to the objects for which the appropriations were made, except
as otherwise provided by law." In applying this statute, we have taken the position
that while federal funds, facilities and employees' time are available only for
purposes authorized by law, it is not necessary that each and every authorized
government employee activity or agency activity be specifically designated by
statute. Accordingly, we have viewed certain civic, charitable, and similar
community support activities involving limited use of agency resources and
employee time as falling within an agency's permissible range of discretion.
71 Comp. Gen. 469, 471 (1992); 67 Comp. Gen. 254, 256 (1988).

For example, an agency may allow limited use of its equipment, supplies, and
employees' official time to participate in an Adopt-A-School program in which the
agency and its employees provide assistance to a Washington, D.C., elementary
school. 71 Comp. Gen. 469 (1992). We stated that an agency's community and
employee relations activities are generally committed to the sound discretion of the
head of the agency in managing and controlling the agency's employees and
resources, with the caveat that the exercise of such discretion must of course be
consistent with relevant statutory authority and with our decisions on the use of
appropriated funds.



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In other cases we have held that when governmental interests are served, an agency
may permit certain kinds of expenditures although no specific appropriations were
provided for them. For example, an agency may use its appropriation to fund
limited amounts of promotional materials for Saving Bonds campaigns in the agency
although the agency has no specific statutory authority to do so. B-225006, June 1,
1987. We noted that it is the policy of the government, expressed in statute and
executive order, to promote the sale of savings bonds which furthers the
government interest of financing the public debt. We have approved similar
campaigns undoubtedly requiring some work time of federal employees and the use
of government supplies and equipment.4

The National Guard and Reserves form a significant part of our national defense
forces as well as provide assistance to state and local communities during disasters
and emergencies, and in other ways. Many federal employees are members of the
Guard and Reserves. As noted above, Congress has encouraged and supported
employees' participation by providing military leave to cover limited periods when
they are on active military duty away from their civilian jobs, and by prohibiting
discrimination against them and providing job protection for them when they are
called to longer periods of active duty, and by stating that the federal government
should be a model employer in regard to these projections.

Although not all federal agencies' missions are as closely connected to the missions
of the Guard and Reserves as is DOD's, all agencies would appear to have some
interest in furthering the governmental purpose of, and national interest in, the
Guard and Reserves. Thus, some use of employee time and agency equipment to
carry out limited, incidental Guard or Reserve functions falls within the parameters
of activities that an agency may permit.

It may be advisable for OPM, after consultation with DOD and other interested
agencies such as the General Services Administration (GSA),5 to provide some
general guidelines as to the amount of time and types of agency equipment that may




4
 See also, 67 Comp. Gen. 254, 256 (1988), permitting agency support for the
Combined Federal Campaign; B-155667, Jan. 21, 1965, permitting Post Office
support for the Eleanor Roosevelt Memorial Foundation; B-154456, Aug. 11, 1964,
permitting Navy support for the John F. Kennedy Library fund drive; 32 Comp. Gen.
361 (1953), concerning support for employees registering and voting; and 30 Comp.
Gen. 521 (1951), concerning employees making Red Cross blood donations.
5
As you are aware, GSA has major responsibilities for government property-
management and telecommunications.

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be used for this purpose, and under what circumstances this is permitted.6 For
example, it appears appropriate to provide that the use of the agency resources for
this purpose may not interfere with the agency's mission and the employee's
responsibilities to the agency. It also may be appropriate to limit the use of agency
resources for this purpose to situations where the employee is called upon to
perform some incidental Guard or Reserve function which the employee cannot
reasonably schedule for nonworking hours or for which he or she cannot make
reasonable arrangements to carry out elsewhere.

Sincerely yours,



Robert P. Murphy
General Counsel




6
 See for example, OPM's "Guidance on Scheduling Work and Granting Time Off to
Permit Federal Employees to Participate in Volunteer Activities," issued to support
the efforts of agencies to encourage employee participation in volunteer activities,
as expressed in the President's April 22, 1998, memorandum to federal agencies.

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